On October 24, 2012, the Supreme Court of Ohio issued a merit decision in Liming v. Damos, 2012-Ohio-4783. The Court had accepted the case on conflict certification and discretionary review and consolidated the two cases, argued May 23, 2012. In a 5-2 decision written by Justice Lanzinger, the Court held that a purge hearing to impose a suspended sentence for failure to pay child support is a civil proceeding, and due process does not require the appointment of counsel for an indigent parent at the civil contempt purge hearing. Justice O’Donnell dissented, joined by Justice Pfeifer.
Useful Precedent for Understanding this Decision
In 2011, the U.S. Supreme Court held that the due process clause does not automatically entitle an indigent non-paying parent facing jail time to appointed counsel at a civil contempt proceeding, so long as the state provides alternative procedural safeguards. Examples of such safeguards are clear notice that ability to pay is the crucial issue at the contempt hearing, a form or an equivalent way to establish information about the contemnor’s financial condition, the opportunity for the contemnor to respond to the information presented, and a judicial determination that the contemnor has the ability to pay. The Turner case, unlike the Liming case, deals with due process rights at the initial contempt hearing, not at the purge hearing.
This 1976 case from the U.S. Supreme Court sets forth three factors for courts to consider in determining what due process requires in situations depriving a person of liberty or property interests. The Fourth District Court of Appeals relied on this decision in its holding, as does the Ohio Supreme Court. The factors are 1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional or different procedural safeguards, and (3) the government’s interest, including the fiscal or administrative burdens of providing additional or substitute procedural requirements.
Michael Liming was divorced from Denday Damos in January of 2005. The couple had two children. Liming was ordered to pay child support, and later filed for bankruptcy. Damos was granted relief from the automatic bankruptcy stay and was allowed to receive child support beginning June 5, 2007, which the Court ordered Liming to pay, plus an additional sum each month to reduce his past arrearage.
The Athens County Child Support Enforcement Agency (the Agency) filed a contempt motion because of Liming’s failure to comply with the child support order. A contempt hearing was held in October of 2008, at which Liming was present and represented by counsel. The magistrate recommended that Liming be found in contempt and sentenced to thirty days in jail, all of which would be suspended if Liming met certain purge conditions requiring a monthly amount toward his arrearage and an additional monthly amount for his current child support obligations. In November of 2008 the court adopted the magistrate’s recommendation, to which no objections had been filed. No appeal was taken from this order. Liming made payments as ordered for awhile, but then began missing them.
In 2010, the court reduced Liming’s support payment at the Agency’s request, but Liming did not make payments towards the arrearage, so the Agency moved to impose the suspended 30 day contempt sentence. At the June 2010 hearing on the motion to impose sentence (purge hearing) Liming, who at the time was self-employed and indigent, requested appointed counsel, but the court refused. The court ordered Liming unconditionally to serve ten days in jail, and left the remaining twenty days suspended, on the condition that Liming fully comply with the terms of his child support obligations.
The Fourth District Court of Appeals affirmed the trial court’s decision, finding that the original contempt hearing was civil in nature, and the purge hearing retained the civil nature of the original contempt proceeding, so the Sixth Amendment right to counsel and the state constitutional analogue didn’t apply, and that no due process right to counsel was violated because Liming had a diminished liberty interest in the thirty day sentence.
The Merit Decision
Civil v. Criminal Contempt—A Murky Dark Hole
In deciding that a purge hearing to impose a suspended sentence for failing to pay child support is a civil proceeding, the Court began by analyzing the difference between a civil and a criminal proceeding, beginning with the observation that the distinction can be “murky.”
Why does this distinction matter? Any kind of contempt hearing involves some kind of punishment, but more constitutional safeguards attach in a criminal contempt proceeding.
A proceeding is civil if the sanction is “remedial or coercive, and for the benefit of the complainant, not the court,” Justice Lanzinger wrote. In contrast, criminal contempt is “to punish the contemnor and to vindicate the authority of the court.” Criminal contempt, she wrote, is “usually characterized by unconditional prison terms or fines.”
Initial Contempt Hearing versus Purge Hearing
It was undisputed in the case that the original 2008 contempt proceeding was civil. Although Liming was given a jail term, he was also given the chance to purge the contempt by making payments and avoid going to jail. But he didn’t. Therein lies the rub for the majority.
Liming argued that the portion of the June 2010 proceeding that imposed the unconditional ten-day jail time on him was criminal, triggering a right to counsel. The majority disagreed, finding that the purge hearing retained the same characterization as the original contempt proceeding—both civil, in this instance. The Court held that a purge hearing is not a new proceeding, but the conclusion of the original contempt hearing, and its only purpose is to determine whether the contemnor has satisfied the purge conditions. Liming could have, but he didn’t. So the court was entitled to enforce the sentence it had already imposed. The majority picked up a catchy little phrase used at oral argument– Liming himself “held the keys” to the jailhouse door by having the power to purge the contempt.
Liming’s Inability to Pay-Required At the Purge Hearing?
Liming argued that the trial court was obligated at the purge hearing to determine whether he had the ability to pay, and its failure to do so converted the hearing into a criminal proceeding, triggering his Sixth Amendment and state constitutional right to counsel.
The majority acknowledged that inability to pay is a defense in a contempt proceeding, and underscored the point that the burden to prove this is on the party subject to the contempt order. The trial court fixed an amount to be paid, and Liming never appealed from that order. At the purge hearing, the Agency established that Liming had not met his purge conditions, and Liming failed to produce evidence of inability to pay, although the burden was on him to do so. The majority found that the failure of the trial court to make an express finding of Liming’s inability to pay did not convert the purge hearing into a criminal proceeding, and no Sixth Amendment or Article I Section 10 right to counsel attached.
Due Process Right to Counsel
This is really the nitty-gritty of the decision. Even though the majority decided the purge hearing in this case was civil in nature, it still had to decide if the due process clauses of the U.S. and Ohio Constitutions required the appointment of counsel for indigent parents in civil contempt proceedings for failure to pay child support. While acknowledging that the recent U.S. Supreme Court case of Turner v. Rogers was instructive (see above), the Court noted that Turner dealt with an initial contempt proceeding, not a purge hearing, so it turned to the Mathews case as more on point, and analyzed each of its factors.
First Mathews Factor: Liberty Interest
The private interest here is loss of liberty. But relying on cases involving parolees and probationers, the majority found that because Liming’s freedom was conditioned on his compliance with the purge requirements, his personal liberty interest was a diminished one.
Second Mathews Factor: Risk of an Erroneous Decision.
The issue of contempt had already been decided at an initial proceeding, where by statute a non-paying parent in Ohio receives notice of the right to counsel if indigent, the potential penalties, and the opportunity to defend against the contempt charges. Liming in fact had counsel at the contempt hearing, and did not appeal the contempt order. At the purge hearing, the only issue is whether the parent complied with the conditions, so the risk of an error is minimal at that stage.
Third Mathews Factor: Government’s Interest and the Burden of Additional Procedural Safeguards
The government has a strong interest in making sure parents support their children. The Court found that requiring appointed counsel in every case involving potential incarceration for violating purge conditions was too much of a burden to outweigh that interest.
Balancing the Mathews factors, the majority found that Liming’s diminished liberty interest, the low risk of an erroneous decision at the purge stage of the proceedings, and the strength of the government’s interest militate against requiring appointed counsel to be provided at civil contempt purge hearings.
Due process does not require the state to provide appointed counsel at a civil contempt purge hearing.
Justice O’Donnell’s Dissent
Justice O’Donnell believes that balancing the Mathews factors favors the appointment of counsel. To him, the right of an indigent parent to appointed counsel at a purge hearing does not turn on whether the matter is deemed civil or criminal. It arises from the possibility of jail time for failure to comply with an order an indigent non-paying parent is unable to meet. He agreed with Liming that the trial court was obligated to determine his ability to pay at the purge hearing, and would find that its failure to do so and to appoint counsel upon a finding of indigency violated Liming’s due process rights.
Here’s his Mathews analysis, in contrast to the majority’s:
- While agreeing with the majority that Liming had a diminished liberty interest here, if Liming were truly indigent, then he did not “hold the keys to the jailhouse door.” The private interest affected by the government’s action, loss of liberty, weighs heavily in favor of the right to counsel. R.C. 2705.031(C)(2) requires that an indigent contemnor be provided with notice of the right to counsel in an initial contempt action. Since the majority specifically found that a purge hearing is the continuation of the original contempt hearing, the right to counsel should be the same in both.
- Unlike the majority, he would find that a purge hearing carries a high risk of erroneous determination, especially when, as here, the trial court failed to make an express finding of Liming’s ability to pay. The likelihood of an erroneous deprivation of liberty would have been lessened by the procedural safeguard of the appointment of counsel to aid Liming in meeting his burden of proving his inability to pay.
- While he agrees with the majority that providing counsel to indigent parents is an increased burden on the government, the important government interest in ensuring that parents financially support their children is not undercut by providing counsel to a parent who has no ability to comply with a purge order.
1. A hearing to determine whether a contemnor has purged himself of civil contempt (a “purge hearing”) is a civil proceeding.
2. The Due Process Clauses of the Ohio and United States Constitutions do not guarantee an indigent parent the right to appointed counsel at a civil contempt purge hearing.
After oral argument, it looked like a majority was going to find the purge hearing civil in nature. At the time, it looked like Justice Cupp was most likely to go the other way, seeing an unconditional sentence with no purge condition as much more like punishment, but he didn’t. Now that I have read the decision a number of times, the oral argument in the case really only scratched the surface of some very complex issues. This is a very thought provoking opinion. I’m still not sure which way I’d go on it.